Texas Public Information Act Requests

Begin by seizing something which your opponent holds dear; then he will be amenable to your will.

Sun Tzu

All of the information you provide to the government is subject to public disclosure. Whether you provide information in a contract, file information pursuant to a regulatory obligation, or you are compelled to produce information during an investigation, the Texas Public Information Act allows competitors, customers, clients, and concerned citizens to request the production of that information.

Oftentimes, Texas Public Information Act requests encompass a party’s trade secrets and other competitively sensitive information. If so, the company or individual will be provided with notice of the request, and with the opportunity to object to the disclosure of any confidential information. Parties seeking to prevent the disclosure of trade secrets or other competitively sensitive information must act quickly by filing an objection with the Texas Attorney General’s Office.

Cobb & Counsel has significant experience objecting to the disclosure of confidential information requested pursuant to the Texas Public Information Act. While we frequently prevent the disclosure of our clients’ confidential information by obtaining a positive Attorney General Letter Ruling, even when those rulings are adverse, we consistently prevent the disclosure of our clients’ information pending the appeal of such rulings to the District Court.

For more information about Responding to Texas Public Information Act requests, click here.

Speed is the essence of war.

Sun Tzu

10 Day Deadline to Submit Arguments to the Attorney General

If you receive a third-party notice of a Texas Public Information Act request indicating that your trade secrets or other confidential information is at risk of disclosure, you should contact us immediately.

If you have received a third-party notice of a Texas Public Information Act request from a Texas governmental body, you have likely been provided with the following warning:

You are not required to submit arguments to the attorney general, but if you decide not to submit arguments, the Office of the Attorney General will presume that you have no interest in withholding your records from disclosure. In other words, if you fail to take timely action, the attorney general will more than likely rule that your records must be disclosed to the public. If you decide to submit arguments, you must do so not later than the tenth business day after the date you receive this notice.

Notwithstanding this language, a party may nevertheless have the opportunity to present the Attorney General with arguments against disclosure even after the expiration of the 10-day objection period provided certain precautions are taken. If you have received a third party notice under the Texas Public Information Act and wish to object to the disclosure of your confidential information, even if the 10-day deadline has expired, contact Cobb & Counsel immediately.

Any Competitively Sensitive Information Can Be Protected

With the Texas Supreme Court’s ruling in Boeing Company v. Paxton, companies have a new weapon – or shield – against disclosure of competitively sensitive information: the “competition or bidding” exception, which protects “information that, if released, would give advantage to a competitor or bidder” from disclosure. Tex. Gov’t Code § 552.104(a). The Texas Supreme Court held that the standard for exemption is whether disclosure of the information “would be an advantage, not whether it would be a decisive advantage.” Significantly, the Texas Supreme Court did not limit the “competition or bidding” exception’s application to an ongoing bidding process, or indeed, to a bidding process at all, but granted private parties the right to claim the exception whenever the release of the information would give an advantage to a competitor, regardless of the context. Boeing significantly broadens the exemption for the disclosure of competitively sensitive information, which has historically been limited to the protection of “trade secrets” or “commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained.” For more information, click here.

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